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"No objection is now being made to the will, and in our opinion a deed from the executors will vest in the appellant a perfect title.”96
In Davies v. Gaines and also in Steele v. Renn, the executor's vendees were bona fide purchasers. Neither of the vendees had any notice or knowledge of the undisclosed will, nor of the fact of the forgery, respectively. Under the Illinois and Indiana statutes, the executor's vendee, either actually or constructively has notice and knowledge of the existence of the infant's right of contest. Hence, in these two states one of the distinguishing features found in decisions Davies v. Gaines and in Steele v. Renn, namely, the element of the executor's vendee being a bona fide purchaser, is not present. Further, in those two decisions, there was not involved the question of a special statute which conferred special rights upon the favored classes. In Reed v. Reed, though the rights of infants were involved, those rights were the ones conferred upon certain classes by general statutory enactment; and those rights were only incidental to the question in issue, namely, May an executor's vendee who knows of the heir's right to attack the probate proceedings within five years, and who freely contracts to purchase a parcel of land from the executor, refuse to perform the contract on the ground that the heirs may contest the transaction within the time allowed by statute?
The other principal basis for the decision in Davies v. Gaines case, and in Stecle v. Renn, was that the probate court, in its proceedings under the invalid or forged will, was exercising equity jurisdiction in rem. Assuming (without questioning the principle thus stated by the two courts) that there was an exercise of equity jurisdiction in rem, in the particular cases involved, there remains a new element in those sales by executors made under the authority of the Illinois and Indiana statutes. And that is the express statutory right conferred upon infants and those non compos mentis by Sections 7 and 3159 of the Illinois and Indiana statutes respectively. In Luther v. Luther, the Illinois court states:
"Outside of the statute no right existed in favor of the heir to go into a court of chancery to contest the validity of the will. He could not go into equity for any other purpose than to remove impediments to a full and fair trial at law. The power to entertain bills of this character is not embraced among the general equity powers of a court of chancery."97
96. Reed v. Reed, 91 Ky. 267. 97. 122 I11. 564.
Again in Kelly v. Kelly,98 the court states, “The bill to contest a will is a statutory proceeding, and the jurisdiction of the court of chancery in such a proceeding is limited by the statute."99 In Dowling v. Gillelad the court holds, "The judgment of the probate court admitting the will to probate did not become conclusive and a bar to a contest of the will until the time for beginning such action had expired."100 In Sinnett v. Bowman it was contended that a decree setting aside a will was too broad, in that the decree assumed not only to revoke and set aside the probate of the will but also "all proceedings thereunder.”101 The lower court's decree ran, “The will is void and of no effect, and setting aside the probate thereof, and the proceedings thereunder, and declaring the same to be null and void.” The Supreme Court, in commenting on this decree, referred to Moyer v. Swygart, where a decree in the same terms was held not to be erroneous as being too broad. “It did nothing," said the court, “more than to declare the results which necessarily follow from setting aside the alleged will."'102 The Illinois Supreme Court in speaking of the jurisdiction involved comments:
“The jurisdiction invoked is not the general equity powers of the court, but a special statutory jurisdiction providing a method for trying
the validity of a writing alleged to be a will. The suit is of the same nature as the previously existing right to a contest whenever a will should be offered in evidence and property rights are involved.”103
As has been seen, a will at common law was of no particular value where real estate was involved. One claiming title to real estate through a will must prove the validity of the instrument when a controversy arose over the title.104 Except for the element of time, and the classes of persons involved, the Indiana and Illinois legislatures have created a legal situation which is identical with the status of wills existing under the early common law. That is, so far as infants and persons non compos mentis are concerned, a will and the transactions carried out under its authority have no binding force and effect as long as the statutory rights of those under disabilities are not prescribed or exercised.
There is little doubt that Sections 7 and 3159 of the Illinois and Indiana statutes of wills, respectively, are to be strictly con
98. Italics are the author's. 99. 285 Ill. 74. 100. 275 Ill. 76. 101. Italics are the author's. 102. 151 Ill. 154. 103. 280 I11. 406. 104. Snced v. Ewing 5. J. J. Marsh 460.
strued. The Illinois court in construing the term "absentee's" (who are among the ones favored by Section 7 of the statute) stated
"The act provided .. the probate of the will shall be forever binding and conclusive on all parties concerned and not falling within the saving clause. The provisions are correctly designated statutes of repose and are dictated by a wise public policy—to put at rest title to property, and prevent stale and vexatious litigation, and being promotive of the public welfare, exceptions out of or savings from such statutes are to be strictly construed.”105
With the most strict construction of the sections of the statutes in question, can the court deny to the classes falling within the saving clause the right to contest and have declared null and void an invalid will and transactions thereunder ? If the right of contest alone is allowed, of what benefit will the statute be to those within the saving clause? Will the court, in the face of the expressed intention of the legislature, as that intention is revealed in the light of legislative history on the subject, go as far as to render the statute a nullity? The court may so construe these statutes. Until there is such a construction, the effect of these statutes will be a subject of controversy.
The right of a minor to question the validity of a will after minority, under sections 7 and 3159 of the Illinois and Indiana statutes of wills, respectively, cannot be denied. This right is distinct and independent of other statutory and common law rights of the minor. The wisdom of the legislative policy in bestowing such a privilege on those under legal disabilities does not concern us. The existence of that right and its practical consequences do concern the practicing attorney and those who own real estate or invest money therein. The purchaser of a hundred dollar real estate bond; the investment-speculator who buys on the fringe and waits; the insurers of titles; all may be adversely affected. An executor acting under the authority of a will which either devises the decedent's real estate to him, or gives him a mere power to sell and convey, sells and conveys a parcel of land in which a minor has an estate. The years pass. The land increases in value. Eventually the minor attains his or her majority, and institutes a bill to have the will declared null and void. His petition is acted upon favorably by the court and jury. To whom does the land belong? To the heir by virtue of the laws of descent.106 Did the original court in which the provisions of the alleged will were enforced, have any basis for authorizing the sale by the executor? No. Did the court, as re
105. Wheeler v. Wheeler, 134 Ill. 532. 106. 107 Ill. 467.
, quired by sub-section (a) of Section 288 of the Indiana statute, have jurisdiction of the subject matter, the land ?107 No. The question of the sale and conveyance of the land was never properly brought before the court. On the death of the testator title vested in the minor heir.108 And there title remained. The minor heir could be divested of his estate only by proper legal proceedings.
No one knows how a contest of a will may result. What cautious purchaser would run the risk of sustaining the losses attendant upon a long drawn out law suit? Assume it were impossible to establish the invalidity of the will. Does that fact eliminate the possibility of having the land in question tied up during the course of an appealed case? What course or courses are open to obviate the practical drawbacks of the particular sections of the will's statutes under consideration ?
As a practical means of eliminating the detrimental aspects of the statutory rights of a minor to contest a will, two possible solutions are offered. In drawing a will the testator could make his debts a charge upon all his real estate.109 This would make the sale of the land a judicial sale for the payments of debts, and the executor would be acting, technically, not under the authority of the will, but he would be acting in the capacity of an administrator who sells the real estate of a decedent's estate for the purpose of paying the debts. The eventual outcome of this procedure is by no means assured. It is fairly probable the courts in construing the will would, in the absence of sufficient actual debts to require the sale of all the decedent's real estate, interpret the executor's sale as one made under the authority of the will. And thus, with the will declared invalid, the sale would be subject to rescission. A second solution suggested, and a better way out of the difficulty, is to have the infant by his next friend file a petition to contest the will prior to the sale and conveyance of the land involved. For the infant will then have had his day in court on the matter of his right to contest the will, and is precluded from any future exercise of the right of contest.1
107. See Intra. 108. 112 111. 154. 109. 27 III. 88. 110. Campbell v. Ficher 168 Ind. 645.
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COMMENT ON RECENT CASES POWER OF APPOINTMENT—CONFIRMATION OF DEFECTIVE ExeCUTION.-In Merchants Loan & Trust Co. v. Patterson 308 Ill. 519, 139 N. E. 912, a grantor in a deed of trust, under which he had the equitable fee in the trust real estate, defeasible, however, in case of his death during the trust period (20 years), had, also by the terms of the deed, a general power of appointment of the equitable fee, by will, in case of his death within the trust period, and in default of such appointment the fee was to go to his children. The grantor died during the trust period, having executed a deed of an